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Foster v. Foster

September 4, 2009

TIMOTHY FOSTER, PETITIONER,
v.
HOLLY R. FOSTER, RESPONDENT.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., J.

MEMORANDUM OPINION

I. Introduction

Petitioner Timothy Foster ("Petitioner") seeks the return of his son, Isaiah Foster, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 19 I.L.M. 1501 (1980) (hereinafter the "Hague Convention"). The Hague Convention was codified by the United States Congress in the International Child Abduction Remedies Act, 42 U.S.C. § 11601 et seq. Petitioner contends that Respondent, Holly R. Foster ("Respondent"), wrongfully removed Isaiah from Canada without his permission.

II. Legal Framework of the Hague Convention

The Hague Convention is a multilateral treaty on parental kidnapping to which the United States and Canada are signatories. See 53 Fed. Reg. 23834 (listing signatory nations); see generally Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259 (3rd Cir. 2007). The Convention provides a mechanism to ensure the prompt and safe return of children to their habitual residence after they have been wrongfully removed. The Convention also seeks to secure protection for the "rights of custody and of access under the law" of the habitual residence. See Hague Convention, Article 1. "The Convention's procedures are not designed to settle international custody disputes, but rather to restore the status quo prior to any wrongful removal or retention, and to deter parents from engaging in international forum shopping in custody cases." See Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3rd Cir. 2006).

In order to succeed in a petition seeking return of a child, a petitioner must demonstrate by a preponderance of the evidence that a wrongful removal or retention occurred. For a removal to be wrongful, a petitioner must establish that: (a) the respondent removed or retained the child from the child's nation of habitual residence, and (b) under the law of the child's nation of habitual residence, the petitioner was exercising parental custody rights over the child at the time of removal or retention, or that he would have exercised said rights but for the removal or retention. See Hague Convention, Article 3. See also In re: Application of Ariel Adan, 437 F.3d 381, 390 (3rd Cir. 2006).

Once this standard has been satisfied, the burden shifts to the respondent to demonstrate that the wrongful removal was justified by proving one of the affirmative defenses set forth in Article 13 of the Hague Convention. Application of Adan, 437 F.3d at 389-90. If respondent fails to prove any affirmative defense by the requisite standard, the Court must order the prompt return of the child to the country of habitual residence. Id.

In this case, Respondent does not dispute that Petitioner has established the elements of wrongful removal under Article 3 of the Convention. The sole focus of this proceeding is whether the "grave risk of harm" defense set forth in Article 13(b) of the Hague Convention operates to prevent the return of Isaiah to Canada.*fn1

Under Article 13(b), a court "is not bound to order the return of the child if . . . there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Baxter v. Baxter, 423 F.3d 363, 373 (3rd Cir. 2005). This exception is to be construed narrowly and requires proof by clear and convincing evidence. Application of Adan, 437 F.3d at 390; 42 U.S.C. § 11603(e)(2)(A).

The United States Department of State has offered the following guidance as to the applicability of this exception:

A review of deliberations on the Convention reveals that "intolerable situation" was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An example of an "intolerable situation" is one in which a custodial parent sexually abuses a child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child's return under the Convention, the court may deny the petition. Such action would protect the child from being returned to an "intolerable situation" and subjected to a grave risk of psychological harm.

51 Fed.Reg. at 10,510. "[T]he meaning attributed to treaty provisions by the government agencies charged with their negotiation and enforcement is entitled to great weight." United States v. Stuart, 489 U.S. 353, 369 (1989).

The Second Circuit has characterized the exception as follows:

At one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do.

Blondin v. Dubois, 238 F.3d 153, 162 (2nd Cir. 2001). Similarly, the Court of Appeals for the First Circuit had addressed the quantum of proof required by stating:

To meet her burden under the article 13(b) exception, the respondent must establish that the alleged physical or psychological harm is "a great deal more than minimal." Indeed, the harm must be "something greater than would normally be expected on taking a child away from one parent and passing him to another." Courts are not to engage in a custody determination or to address such questions as who would be the better parent in the long run.

Whallon v. Lynn, 230 F.3d 450, 459 (1st Cir. 2000). Each of these formulations and examples was cited favorably by the Third Circuit in Baxter.

Where allegations are made concerning physical abuse, it is axiomatic that the purposes of the Hague Convention are not furthered "by forcing the return of children who were the direct or indirect victims of domestic violence." Simcox v. Simcox, 511 F.3d 594, 604 (6th Cir. 2007). Moreover, the Third Circuit has acknowledged that evidence of a petitioner's abuse of his spouse is "relevant to the District Court's determination of whether returning [the child] would expose the child to a grave risk of harm." Application of Adan, 437 F.3d at 396 n. 6. The Sixth Circuit has noted, however, that "the more difficult question is at precisely what level . . . the risk to the child is grave, not merely serious." Id.

In Simcox, the Court illustrated the distinction between grave and serious risk of harm by articulating three broad categories into which an abusive situation might fall. On the one end of the spectrum, the Court noted situations where "the abuse is relatively minor." Id. at 607. For example, courts have held that "two incidents" of a mother striking two of her four children and a generally chaotic home environment did not establish a "sustained pattern of physical abuse." McManus v. McManus, 354 F.Supp.2d 62, 69-70 (D. Mass. 2005). Similarly, in Whallon, the First Circuit held that a husband's verbal abuse and an incident of shoving directed towards his wife, "while regrettable, was insufficient to establish a grave risk of harm to the child." Simcox, 511 F.3d at 609 (citing Whallon, 230 F.3d at 460). An abusive situation is less likely to be considered "grave" where the allegations of abuse concern "isolated or sporadic incidents." Id. at 608.

On the opposite end of the spectrum are cases in which "the risk of harm is clearly grave, such as where there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect." Id. at 607-08. In Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir. 2005), the Seventh Circuit reversed an order to return children to a petitioner who had "beat[en] his wife severely and repeatedly in [the children's] presence" and threatened to kill them. Similarly, in Walsh v. Walsh, 221 F.3d 204, 219-20 (1st Cir. 2000), the court reversed an order of return after finding that the father was "psychologically abusive" and had severely beaten the children's mother in their presence. See also Rodriguez v. Rodriguez, 33 F.Supp.2d 456, 459-60 (D. Md. 1999) (refusing return where child had been belt-whipped, punched and kicked, and where the child's mother had been subjected to serious attacks resulting in a broken nose and choking).

The third category of cases described by the Sixth Circuit concerned those that "fall somewhere in the middle," where the abuse is "substantially more than minor, but is less obviously intolerable." Id. at 608. Applying the grave risk of harm analysis to such situations is "a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return." Id. In evaluating the allegations, a court must "consider the totality of circumstances related to the alleged child abuse, rather than simply considering and explaining away each allegation in isolation." Application of Adan, 437 F.3d at 398.

In Simcox, the Court characterized the case as being "admittedly a close question," and presenting "difficult, middle-of the road facts." Id. at 609. The evidence portrayed the petitioner as "both verbally and physically violent with his wife and children." Id. at 608. Examples of abusive behavior included allegations that he would call the children's mother a "f--ing bitch," "grab her jaw and put his finger on her neck, pulling hair," and that he once "banged her . . . head against the passenger window of the vehicle in which they were traveling." Id. at 599-600. The children had witnessed numerous instances where the petitioner struck respondent and "recounted frequent episodes of belt-whipping, spanking, hitting, yelling and screaming, and of pulling their hair and ears." Id. After concluding that the abuse alleged was "serious" in nature, occurred with "extreme frequency," and was likely to "occur again without sufficient protection," the Court concluded that a grave risk of harm had been established. Id. at 608.

Finally, if a respondent is able to produce clear and convincing evidence of a grave risk of harm to the child, she must then demonstrate that "the court[s] in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection." Application of Adan, 437 F.3d at 395 (citing Blondin, 238 F.3d at 162). As such, the court must consider the "protective efficacy of the [foreign nation's] courts and police" and carefully determine whether an order might be tailored "to ameliorate, as much as possible, any risk to [the child's] well- being." Id.

III. Findings of Fact

The following represent the Court's Findings of Fact based on the testimony and exhibits received into evidence at the hearings conducted on June 4 and 5, 2009 and July 21, 2009.*fn2

The Fosters were married on November 26, 1988 in Florida. They lived there for approximately ten years before moving to Canada in 1998 and ultimately settling in Val des Monts, Quebec. (Evidentiary Hearing Transcript, 6/4/09, p. 11).*fn3 A mutual friend of the Fosters who was pregnant contacted them about adopting her child and the Fosters agreed to do so. (Transcript, p. 14). Isaiah was born in Canada on October 28, 2000 and was subsequently legally adopted by the Fosters. Both Fosters were present at Isaiah's birth. (Transcript, 6/4/09, p. 15).

Respondent testified, in essence, that from early on in the marriage Petitioner was verbally abusive. While she denied any physical abuse while in Florida, she testified that her husband would frequently call her an idiot or other degrading names. (Transcript, 6/4/09, p. 9). The verbal abuse became more severe while awaiting Isaiah's birth. Petitioner would frequently scream at her and chastise her for not behaving like a "Proverbs 31 wife" - a contention that she was not appropriately deferential or submissive to him. (Transcript, 6/4/09, pp. 16-17, 19).

Respondent testified that the first instance of physical abuse occurred when Isaiah was an infant. An argument ensued when her husband told her he had been out drinking with an old girlfriend. Matters apparently escalated to the point where he threw her on the bed and squeezed her head. (Transcript, 6/4/09, p. 18). The other incident of physical abuse directed toward Respondent occurred a number of years later, when Isaiah was approximately six years old. Petitioner and Respondent had become involved in an argument while driving home. Isaiah became upset and Respondent was comforting him upstairs in her bedroom after they got home. She testified that Petitioner came in, grabbed her by the arm and pushed her through a doorway, causing her to fall. (Transcript, 6/4/09, p.21).

Respondent testified in some detail as to the nature of Petitioner's interaction with his son. She had observed that her husband on occasion, when displeased with something Isaiah was doing, would smack him on the head. (Transcript, 6/4/09, p. 27). If Isaiah fell short of his father's expectations, such as an inability to perform a bike trick, he would call him a "wuss" or a "wimp." This conduct occurred periodically since Isaiah turned five. (Transcript, 6/4/09, p.22). In the spring of 2008, Isaiah complained to her that his dad had pulled his hair. (Transcript, 6/4/09, p 23). She also recalled that Petitioner had spanked Isaiah on approximately four occasions with a wooden spoon.*fn4 (Transcript, 6/4/09, p. 28). She relayed an incident where Petitioner had taken Isaiah to a ski resort and, as a result of Petitioner's inattention, Isaiah had ridden up on a ski lift by himself and, rather than debarking at the top, rode the lift back down. (Transcript, 6/4/09, pp. ...


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